General Terms and Conditions of AKcess Pharma GmbH
§1 Scope
1. These General Terms and Conditions (GTC) apply to all our business relationships with our customers ("Buyers"). The GTC apply only if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law, or a special fund under public law as per § 310 para. 1 BGB.
2. Our GTC apply exclusively. Deviating, opposing, or supplementary GTC of the Buyer only become part of the contract if we have expressly agreed to their validity. This requirement for consent also applies if the Buyer refers to their GTC during the order process and we do not expressly object to them.
§2 Offer and Contract Conclusion
1. All offers are non-binding and subject to change unless they are expressly designated as binding in writing or agreed as such. All offers are expressly subject to price changes due to exchange rate fluctuations and changes in the procurement prices from our suppliers.
2. An order is a binding contractual offer from the ordering party. A contract is only concluded when we accept the contractual offer. An order is considered accepted when we confirm it in writing or by delivering the goods to the Buyer. We reserve the right to reject orders without stating reasons. In this case, the ordering party will be promptly notified.
§3 Prices and Payment Terms
1. Our prices are ex-warehouse unless otherwise agreed in writing in the order confirmation.
2. Unless otherwise agreed in writing in individual cases, our current prices at the time of contract conclusion apply ex-warehouse. Our prices are net prices exclusive of the VAT applicable at the time of invoicing and exclusive of transport/shipping and other logistics costs.
3. Unless otherwise agreed, the purchase price is due and payable within fourteen days of invoicing and delivery or acceptance of the goods. However, we are entitled, even in the context of an ongoing business relationship, to deliver wholly or partially only against advance payment. We will declare such a reservation at the latest in the order confirmation. Payment of the purchase price is to be made exclusively to the specified account; the deduction of discounts is only permissible with a special written agreement. Payments can be made by bank transfer, advance payment, or direct debit. Payment by check or bill of exchange is not possible.
4. The Buyer is in default if the above payment term expires. During the default period, the purchase price is subject to interest at the statutory default interest rate of eight percentage points above the respective base rate according to § 288 para. 2 BGB. We reserve the right to claim further damages due to the default. For merchants, our claim to the commercial maturity interest under § 353 HGB remains unaffected.
§4 Rights of Retention
1. The Buyer is only entitled to set-off or retention rights if their claim is legally established, undisputed, and their counterclaim is based on the same contractual relationship.
§5 Delivery Time and Delay in Delivery
1. The delivery time is communicated to the Buyer upon acceptance of the order.
2. Delivery times are non-binding unless expressly designated or agreed as binding.
3. If we cannot meet the communicated delivery times for reasons beyond our control, we will inform the Buyer immediately and specify a new or expected delivery time. If delayed delivery due to unavailability of performance cannot occur within the newly specified delivery time, we are entitled to withdraw from the contract in whole or in part; any consideration already provided by the Buyer (in the form of the purchase price) will be refunded immediately. Unavailability of performance occurs, for example, if our supplier does not timely deliver to us or other disruptions in the supply chain (e.g., force majeure) occur.
§6 Delivery, Transfer of Risk, Acceptance, Default in Acceptance
1. With the transfer of goods to the Buyer, the risk of accidental loss and accidental deterioration passes to the Buyer. In the case of shipment purchases, the risk of accidental loss, accidental deterioration of the goods, and delay risk already passes with the delivery of the goods to the carrier or the freight forwarder, regardless of whether the shipment is made from the place of performance or who bears the freight costs. This also applies if we handle the transport at the Buyer's request using the customer number provided by the Buyer with the carrier specified by the Buyer.
2. The method and type of shipment are determined by us at our discretion and considering the particularities of the ordered product. The Buyer's wishes are reasonably considered.
3. The shipment is made to the delivery address specified by the Buyer. Partial deliveries are permissible, and no additional costs arise for the Buyer.
4. Shipping costs are indicated in the order confirmation.
5. The Buyer is responsible for ensuring that storage requirements, especially cooling and temperature requirements, for goods within their responsibility are monitored and maintained. Delivered goods may no longer be used after the expiration date. This is the Buyer's responsibility.
6. Our obligation to deliver depends on the timely and proper fulfillment of the Buyer's obligations, especially payment obligations. As long as the Buyer is in default with a due payment from the ongoing business relationship, we are released from our delivery obligation.
§7 Retention of Title
1. We retain title to the delivered goods until full payment of all present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
2. While an open account exists, the reserved ownership serves as security for our respective claim balance. During the retention of title, the Buyer bears the full risk for the goods, particularly the risk of loss, accidental destruction, and accidental deterioration.
3. The Buyer is not permitted to pledge or transfer as security goods subject to our retention of title. However, they may resell the goods in the ordinary course of business. The Buyer's claims from the resale of the reserved goods are assigned to us upon resale. We accept this assignment.
§8 Buyer's Claims for Defects
1. Buyer's claims for defective goods are fundamentally governed by law. Instead of defect rectification, only the delivery of a defect-free item is owed.
2. Buyer's claims for damages are excluded unless the damages result from injury to life, body, or health covered by mandatory insurance, gross negligence, intent, or breach of essential contractual obligations.
3. The Buyer must inspect the goods immediately upon receipt and report any defects promptly, at the latest within one week, to us. The Buyer loses their claims from the delivery of defective goods if they do not comply with their reasonable inspection and notification obligations, especially if they do not perform proper sample testing.
4. If the defect is due to a defective third-party product, we are entitled to assign our warranty claims against our supplier to the Buyer. The Buyer can only assert warranty claims against us if the judicial enforcement of the assigned claims against the supplier or manufacturer of the defective third-party product remains unsuccessful or has no prospect of success, e.g., due to insolvency.
§9 Statute of Limitations
1. The general statute of limitations for claims arising from defects of quality or title is, deviating from § 438 para. 1 No. 3 BGB, one year from delivery. If acceptance is contractually agreed, the statute of limitations begins with acceptance.
§10 Other Liability
1. All product information, technical advice, and consulting services from AKcess Pharma GmbH are purely informative and do not constitute guarantees of durability, quality, or warranties. Unless otherwise agreed, these services are free of charge and exclude any liability.
2. We as sellers are liable, unless otherwise stipulated in these General Sales Conditions, including the following provisions, for contractual and non-contractual obligations according to statutory provisions.
3. We are only liable in cases of intent and gross negligence. In cases of simple negligence, we are only liable, subject to statutory liability limitations (e.g., care in one's own affairs; minor duty breaches):
a) for damages resulting from injury to life, body, or health,
b) for damages resulting from the breach of an essential contractual obligation (obligations whose fulfillment enables the proper performance of the contract and on which the contracting party regularly relies and may rely). Our liability is limited in such cases to compensation for foreseeable, typically occurring damage, but not exceeding a maximum of €500,000 for property damage and €100,000 for financial damage.
4. The liability limitations resulting from §10 (3) also apply to third parties and in case of duty breaches by persons whose fault we are responsible for according to statutory provisions. If a defect has been fraudulently concealed or a guarantee for the quality of the goods has been assumed, the liability limitations do not apply. This also applies to claims of the Buyer under the Product Liability Act.
5. Unless otherwise regulated above, claims for damages against us are excluded.
6. Claims for damages by the Buyer, for which we have limited our liability, become time-barred one year after the statutory limitation period begins. This limitation period does not apply to claims arising from tort.
§11 Special Legal Requirements / Information Obligations
1. At the Buyer's request, we import pharmaceuticals that are not approved in Germany in accordance with § 73 para. 3 AMG (Medicinal Products Act). The Buyer confirms that they meet the legal requirements at the time of order and documents the goods according to legal provisions upon receipt.
2. Manufacturer documentation related to imported pharmaceuticals informs the Buyer. The Buyer undertakes to comply with manufacturer guidelines and recommendations, particularly regarding the advice and information provided to customers or patients.
3. The Buyer is responsible for placing the goods on the market in the destination country and assumes all legal obligations arising from it. In particular, the Buyer undertakes to comply with the applicable traffic regulations in the destination country, including medicinal product regulations. The Buyer is liable for any resulting damages.
4. The Buyer is informed that specific storage, cooling, and temperature conditions may need to be met. The responsibility for this lies with the Buyer.
§12 Returns
1. The return of delivered goods for exchange or credit is generally not possible. This particularly applies to products already imported into the destination country. Goods returned without authorization will be destroyed by us without compensation. We are not obliged to store and return these goods.
§13 Choice of Law and Jurisdiction
1. These General Terms and Conditions and the contractual relationship between us as the seller and the Buyer are governed by the laws of the Federal Republic of Germany, excluding international uniform law, particularly the UN Convention on Contracts for the International Sale of Goods.
2. If the Buyer is a merchant as defined by the Commercial Code, a legal entity under public law, or a special fund under public law, the exclusive—and also international—place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our business headquarters in Freiburg i.Br. The same applies if the Buyer is an entrepreneur as defined by § 14 BGB.
3. We are also entitled to bring an action at the place of performance of the delivery obligation according to these General Sales Conditions or a prevailing individual agreement or at the general place of jurisdiction of the Buyer. Prevailing statutory provisions (exclusive jurisdictions) remain unaffected by this.